Ex Parte MC Queen

Board of Patent Appeals and Interferences

Feb 27, 2003

08897484 (B.P.A.I. Feb. 27, 2003)

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The opinion in support of the decision being entered
today was not written for publication and is not
binding precedent of the Board.
Paper No. 25
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte CLARENCE W. MCQUEEN
________________
Appeal No. 2000-2036
Application 08/897,484
________________
ON BRIEF
________________
Before KRASS, JERRY SMITH and DIXON, Administrative Patent
Judges.
JERRY SMITH, Administrative Patent Judge.
ON REQUEST FOR REHEARING
The Board of Patent Appeals and Interferences mailed a
decision in this application on August 21, 2002 in which the
rejection of claims 1, 4 and 6-8 as unpatentable under 35 U.S.C.
§ 102(b) was affirmed. In response to this decision, appellant
has nominally filed under 37 CFR § 1.196 a new set of claims,
added amendments to the specification of this application, and
argued the rejection of claim 4. Since prosecution before the
Appeal No. 2000-2036
Application 08/897,484
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examiner has closed, the new claims and the amendments to the
specification will not be considered. We are treating
appellant’s arguments with respect to claim 4 as a request for
rehearing of our original decision under 37 CFR § 1.197.
Claim 4 was rejected by the examiner as anticipated by
the disclosure of Szabo. Appellant argues that Szabo does not
disclose a ferromagnetic tube as claimed. Appellant also makes
additional arguments which were not specifically made in the
brief on appeal.
With respect to the first argument, the examiner had read
the claimed ferromagnetic tube on the ring-shaped wall 4 of
Szabo. Based on the record before us, we agreed with the
examiner that element 4 of Szabo was a ferromagnetic tube as
claimed. Appellant has still presented no arguments as to why
the ring-shaped wall 4 of Szabo, by itself, is not a
ferromagnetic tube. As interpreted by the examiner, Szabo
discloses a ferromagnetic tube 4 surrounded by a conductor 13.
Appellant did not present any persuasive arguments in the appeal
brief that would demonstrate that the examiner’s findings were
erroneous, and has presented no arguments in this request for
rehearing to that effect.
Appeal No. 2000-2036
Application 08/897,484
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Appellant’s arguments that the conductor 13 of Szabo is
within the shell cavity and does not produce a magnetic field on
the outside are arguments which were not presented before the
examiner in the appeal brief. The Board does not consider
arguments in a request for rehearing which were not made in the
original brief because we do not have the benefit of the
examiner’s position with respect to these new arguments.
Therefore, we will not consider appellant’s arguments near the
bottom of the request for rehearing.
In summary, we have carefully considered the arguments
raised by appellant in the request for rehearing, but we can find
no errors in our original decision. We are still of the view
that the invention set forth in claim 4 is anticipated by the
disclosure of Szabo.
We have granted appellant’s request to the extent that we
have reconsidered our decision of August 21, 2002, but we deny
the request with respect to making any changes therein.
Appeal No. 2000-2036
Application 08/897,484
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No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
DENIED

ERROL A. KRASS )
Administrative Patent Judge )
)
)
)
JERRY SMITH ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
JOSEPH L. DIXON )
Administrative Patent Judge )
JS/ki
Appeal No. 2000-2036
Application 08/897,484
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Clarence W. McQueen
P.O. Box 781
Hailey, ID 83333